DUI BLOG

In the who-will-guard-the-guardians department:

Ex-Detective Gets More Jail Time in Alcohol Cases

Seattle, WA.  June 27  -  A former Seattle police detective who set a breath-test record was sentenced to more than a year in jail and three months in home detention for a series of alcohol-related driving cases, two of which involved minor crashes…

Last year, Jarrett briefly held the unenviable record of the highest blood-alcohol concentration in state history when she measured 0.47 on a State Patrol breath test…

Jarrett has already served more than 300 days in home detention and about 60 days in jail. She spent the past two weeks in jail after she apparently relapsed, breaking a court order to stay away from alcohol.

She now must serve 440 more days in jail, though she could get time off for good behavior and will be allowed to serve most of that time in a work-release program.

“I think she struggles with a disease that has been winning,” (Judge David Steiner) said…

Hmmm…At least three DUIs involving two car crashes, two probation violations and a record 0.47% blood-alcohol level.  What do you think your sentences would have been?  Home detentions and work release programs?  Or very long stretches of hard time?

Funny how prosecutors and judges suddenly see it as a “disease” when the drunk driver is a cop.  Of course it’s a disease (see The DUI Problem and Time for a Change), but where is that compassion when the defendant isn’t a cop?

I’ve written repeated posts in the past about the highly unreliable ignition interlock devices (IIDs) which have been widely publicized by MADD as the way to “eliminate drunk driving once and for all”.  See, for example, The Truth About Ignition Interlock Devices, Ignition Interlock Devices: Dangerous but Profitable and New MADD Goal: All Cars Equipped with Breathalyzers. 

Although these crude in-car breathalyzers are now required in many states for repeat offenders, MADD is promoting them as mandatory equipment for all future vehicles.   Toyota, GM and Saab already have these devices near completion for installation at the factories.  See, Toyota Announces DUI-Proof Cars,  All U.S. Cars to Have Ignition Interlock Devices? and The Car in Your Future.

Technical deficiencies aside, the following editorial from the National Motorists Association offers thoughts about the ramifications of this latest mandatory “safety feature”:

Mandatory In-Car Breathalyzers Coming?

If you’re not a convicted drunk driver, should you still be required to have an in-car breathalyzer fitted (at your expense, ‘natch) to your next new vehicle?

Apparently, some automakers — including GM and Toyota — think so. They and a few others are working together under the auspices of something called the Driver Alcohol Detection System for Safety, which is a $10 million federal “research program” that is trying to develop just such technology for mass introduction a few years from now.

At the moment, the only people who have to deal with (and pay for) in-car Breathalyzers are convicted drunks; the devices are basically ignition locks that prevent the vehicle’s engine from being started until the would-be driver blows into the tube and the system determines he’s not liquored up.

But by 2012 or so, in-car breath sniffers could be standard equipment in every new vehicle sold, force-fed to you by the tag team of Washington, Detroit and, of course, the ever-busy Mothers Against Drunk Driving (MADD).

No conviction necessary…

I dislike drunk drivers as much as Mothers Against Drunk Driving (is anyone actually for drunk driving)? But I certainly do object to policies and regulations that impose cost and hassle and arguably, petit tyranny, on people who have done absolutely nothing to warrant it.

This isn’t about nannyism so much as it is about upending a few basic bedrock Western ideas about criminal justice, rights and responsibilities. Chief among these being that each of us gets treated as a specific individual.

If we do something wrong, we get specifically held accountable for it;  the guy next door who had nothing to do with it isn’t dragged along for the ride. But that’s just what is happening here — indeed, has already happened — from those so-called “sobriety checkpoints” (which mostly “check”  perfectly sober drivers) to the growing kudzu of “primary enforcement” seat belts laws that pester (and ticket) people for not wearing a seat belt, an action that may not be especially smart on an individual level but which has very little to do with the safety or well-being of others…

People used to get that; today, most don’t seem to. It’s the only way to explain the tsunami-like effectiveness of the word, “safety” — which doesn’t have to be specifically defined, quantified, subjected to cost-benefit analysis or throttled back by the once-superior claim of the individual’s “personal bubble of authority” — where he or she formerly reigned supreme, free of the suffocating and endless edicts of others who claim their evaluation of a perceived risk trumps your personal right to choose.

Just say “safety” (and for added emphasis, include “our children”) and no objection can be sustained…

To more fully appreciate how obtrusive these devices are — and how many things can go wrong — see a Japanese TV newscast (English language) on YouTube about Toyota’s IID.

(Thanks to Andre)

American citizens are considered to be innocent until proven guilty – unless it involves  drunk driving, in which case a MADD-inspired hysteria takes over. Consider the following news story..

Larchmont, NY.  June 10 – Mike Mezansky, a former star Mamaroneck High School baseball player accused of driving drunk and hitting a child, said his legal problems took a back seat to the more immediate concerns of the 9-year-old victim.

“My heart goes out to the family,” Mezansky said yesterday, when he answered the door to his home just down the street from Friday’s crash site. “I’ll deal with the legalities of everything, but the main thing is the kid being OK. That’s all I can say.”

The boy, William Powers, suffered a head injury, broken legs, bruised lungs and other wounds. He is at Westchester Medical Center in Valhalla and has been breathing with the help of a ventilator…

He is accused of striking the child on Magnolia Avenue at 7:45 a.m. The boy had just seen his sister onto a Bee-Line bus, then crossed in front of it to head home. That’s when the white Lexus pulled out from behind the bus and struck the boy, police said.

Police detected alcohol and arrested the teen after he failed a series of field sobriety tests. He refused a Breathalyzer test, police said, and they asked for a court order to test his blood.

The results of that test are not yet known, police said today…

Here are some of the letters to the editor that followed:

Who gives a 19 year-old a Lexus? How did the 19 year-old get alcohol? Why is a 19 year-old drunk at 7:30 in the morning?  What the hell kind of parenting goes on in the Mezansky household?!?

OK MAYBE I AM NUTS BUT IS THIS ARTICLE SAYING THAT THIS LOW LIFE ISNT IN JAIL? UN REAL AND HIS HEART GOES OUT TO THE FAMILY….PLEASE IF I WAS THAT KIDS FATHER OUR LITTLE DRUNK DRIVING LOW LIFE WHO COMES FROM A GOOD FAMILY WOULDNT MAKE IT TO COURT…IT MAKES ME SICK HOW WEAK THE DWI LAWS ARE….SO NO PITTY FOR THIS LOW LIFE SHOULD OF CALLED A CAB…..

Sounds like a punk who’s parents give him everything he wants and thought he was immune to the world, on his way to making millions in baseball and thought he was untouchable. Drunk or not, he learned one hell of a life lesson right now and maybe mommy and daddy will wise up and not give a 19 year old punk Lexus.

Was the driver drunk? Yes. I don’t want to hear about the bus driver, or anything else. The reason this boy is in critical condition with injuries that he will never totally heal from, IF he lives… is because this moron drove drunk…at 7:45 in the morning.

We need to get our political representatives to take control of these horrendous happenings by enacting laws which are meaningful and punitive.

He refused a breathalizer test? Seems like a great guy huh? By the way, where was he drinking? Who was he drinking with? If at a house, the parents should be arrested as well. If at a bar, the bartender arrested.

I really don’t care if he was an alter boy all his life. You don’t get a pass on this one buddy. You may have murdered a child due to your reckless behavior, you at least injured him for life. It is Mezanskys fault that this child is on life support instead of going to the pool this summer. Instead of going to summer camp with his twin brother, he will be in the hospital or dead.

Before everyone passes judgement on the driver, lets all wait till the blood alcohol test comes back… 

And now for the follow-up news story:

Larchmont, NY, June 18 -  A drunken-driving charge against a Larchmont teen accused of running over a 9-year-old boy with his car last week was reduced after a blood test came back showing that the teen’s blood-alcohol level after the accident was zero…

Did that stop the hysterical letters?  Following are a few written after news of the .00% blood test was made public:

You hit a child, put him in a coma, and its a traffic violation. A real poster child for responsible driving. Someone got paid off to make this go away; and he will do it again because he got away with it. Nothing but a non remorseful punk!

Daddy or mommy got this kid off, it’s not what you know it’s who you know.

How fast was this kid going anyway to do the damage that he did to the boy – it was 7:45am in the morning, was the sun not out? Ask the little boy if knowing that his assailant will remember this day always if that makes him feel better…

The man is a drunk hick with a lil bit of money..that’s whats keepin him outta prison..bottom line..point blank

This punk kid who at the age of 18 was as they say "driving while ability impaired" in my book that’s DRUNK sorry kid. No sympathy for you or your parents, who probably know that you’ve done this before.

Why did he refuse a breath test? and a field sobriety test? We all know why… sue, sue, sue!!!… he might beat the DWI, but he should have his pockets emptied.

Let’s just remember something…the legal drinking age is 21! This kid is 18…any amount of alcohol is too much!!!! He still needs to face the music.

Obviously this kid has some good connections….you don’t fail sobriety tests when your sober.

Fortunately, there are still a few who give me hope:

Regarding the recent accident in Larchmont in which 18-year-old driver Mike Mezansky hit a 9-year-old boy, now that we know the young driver’s blood alcohol level was 0.00, we would do well to remember that persons accused of a crime are presumed innocent until proven guilty…The young driver was therefore as entitled to the presumption of innocence as any other defendant. Unfortunately, some had all but convicted him before he had even been arraigned, let alone tried. Amazingly, the attacks are continuing even as I write this letter.

(Thanks to David Baker)

As I’ve posted repeatedly in the past, MADD’s prohibitionist zealots are fond of twisting statistics to justify their expansion of unfair laws, Draconian penalties and unconstitutional procedures.  See, for example, A Closer Look at DUI Fatality Statistics, MADDness and Lies, Damned Lies and MADD Statistics.

The truth is finally beginning to emerge:

A Reality Check on DUI Claims 

Groups purposely misstate fatalities

to further an anti-drinking agenda

The Tennessean, June 22 — Drunken-driving stories, like last week’s op-ed by Mothers Against Drunk Driving representative Alexanderia Honeycutt, make headlines every day.

Groups like MADD relentlessly remind Americans that the abuse of alcohol continues to be a huge problem on our roadways and, as a result, the most drastic measures are needed. Though truly "drunken" driving is a serious issue, much of the reported problem is little more than PR.

 Consider fatality statistics. The number of deaths that activist groups attribute to drunken driving is grossly exaggerated.

Last year, federal statisticians classified almost 18,000 deaths as "alcohol-related." However, alcohol-related does not mean alcohol-caused. In fact, that figure includes anyone killed in a crash in which at least one person (driver, pedestrian, cyclist, etc.) was estimated to have any alcohol. (If a sober driver recklessly crashes into and kills a family whose driver had enjoyed a glass of wine, statistics reflect all their deaths as "alcohol-related.")

In reality, the figure reflects a much broader spectrum of casualties: people under the legal limit, drunken pedestrians, impaired cyclists and others. After accounting for those people, actual innocent victims only make up 12 percent of the widely reported statistic — a considerably smaller amount than activists have led us to believe.

The anti-alcohol lobby has also invented fantastical talking points to bolster their bunk traffic stats. Honeycutt uses one of its favorites ("first offenders drive drunk on average 87 times before they are caught"), going so far as to accuse individuals of criminal acts with absolutely no proof to back up the claim.

The truth is that this widely publicized figure comes from rough estimates of self-reported data — commonly criticized as unreliable. Collected from a small sample almost 13 years ago, even the study’s own authors admit the estimates are "crude."

As I posted a couple of years ago, an independent study by the Los Angeles Times  found that despite federal figures claiming nearly 18,000 deaths caused by drunk driving in 2002, only about 5,000 of these actually involved a drunk driver causing the death of a sober driver, passenger or pedestrian.

MADD has used the same altered statistics to get all 50 states – with some federal coercion – to lower the legal limit to .08% and to expand the use of roadblocks:

In the 1990s, these groups used another "crude" statistic to convince the public that reducing the legal blood-alcohol content limit from 0.10 to 0.08 percent would save 600-800 lives annually. Today, research proves it didn’t work.

Their 0.08 push failed to have any measurable effects on traffic fatality rates. It only lowered the threshold for qualifying as a "drunken" driver, ignoring the fact that the majority of "drunks" wreaking havoc on our roads drive while more than double the 0.08 limit. One study in Contemporary Economic Policy concluded that 0.08 efforts would have been better spent encouraging effective measures against chronic drunken drivers.

Tennessee’s anti-alcohol groups aren’t heeding that warning. Instead, they’re demanding more funding, more legislation and more manpower for other misguided measures, like sobriety checkpoints.

These roadblocks are based on the idea that it’s more important to look "tough on drunken driving" than to actually go after the drunks. Checkpoints don’t catch many (if any) drunken drivers. In the largest program ever studied, Tennessee ran almost 900 checkpoints over the course of a year, stopping almost 150,000 of the state’s drivers. The result: a mere 773 DUI arrests — less than one arrest per checkpoint. Compare that to the impact of roving police patrols — a tactic that catches 10 times more drunken drivers than roadblocks.

But you won’t hear anti-alcohol activists like Honeycutt repeat that stat. Their groups no longer target "drunken" drivers, aiming instead to eliminate any drinking before driving.

Right now, the 176 million responsible Americans who drink in moderation can still safely (and legally) drive home after enjoying a drink. Furthermore, research shows that drivers who talk on cell phones, drive drowsy, or travel 7 mph above the speed limit pose a larger threat than those who enjoy a few drinks (and stay below 0.08) before driving home.

Disregarding the evidence, the anti-alcohol movement’s invented, inflated and distorted "facts" would have the public believe that there should be no legal limit except zero. This is the reason we all think one thing when the reality is another.

It is an unfortunate fact that law and politics repeatedly trump science when it comes to prosecuting citizens accused of drunk driving…..  

In People v. Bransford, to cite one notable example, the California Supreme Court was confronted with a defendant who was challenging his DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath.

He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment.  If, for example, a suspect’s ratio had been 1500:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .07% — that is, he would have been innocent.

The Supreme Court of California affirmed the conviction, however, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood â€as measured on the breath”. In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood!

An amazing decision. More interesting, perhaps, is language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.  People v. Bransford, 8 Cal.4th 894 (1994).

In other words, preventing an accused from defending himself with scientific truth serves justice by making it easier to get convictions!

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. Recognizing the truth, she wrote in a separate opinion:

The majority…has on its own created the new crime of driving with alcohol in one’s breath.

My post last week concerning a California High School’s efforts with MADD to traumatize their students, drew quite a reaction from readers.  The following is an update:

School Defends Drunken Driving Hoax

Oceanside, CA.  AP, June 12 – School officials in Oceanside, California, are defending a scared-straight exercise that sent some El Camino High School students into hysterics.

One Monday last month, California Highway Patrol officers went to 20 classrooms and delivered the grim news that several students had been killed in drunken-driving car crashes over the weekend.

The news devastated Michelle de Gracia, who says she was nauseated and too stunned to cry. Others in her physics class were so upset that the teacher had to tell them it was all staged. Then they became angry. Michelle says says “they got the shock they wanted.”

A 15-year-old student says, while she feels “betrayed” by her teachers and school administrators, she also feels that “if it saves one life, it’s worth it.” Others disagree. During assemblies after the hoax, some students held up posters reading “Death is real. Don’t play with our emotions.”

Camino High guidance counselor Lori Tauber says “we wanted them to be traumatized.”

“We wanted them to be traumatized.”  One wonders where the MADDness is going next….

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself.

A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer’s observations and conduct in the field:

The officer’s age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

The officer’s personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate—often by a wide margin—the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement—particularly in municipal departments—were found to lack this specialized training.

Specialization in duty assignment can also enhance alcohol-related enforcement. Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties.

Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.

Weather conditions also affect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

The suspect’s attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

The suspect’s race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed—the overwhelming majority of whom were white—reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

Suspect’s age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

Suspect’s sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming.”

Most DUI cases depend largely upon two variables: the officer and the machine. As has been discussed repeatedly in past posts, the machine is an unknown and unreliable variable. As the federal study indicates, so is the officer.

In previous posts, I’ve explained many of the reasons why breathalyzers are inaccurate and unreliable. See, for example, “Breathalyzers — and Why They Don’t Work“; ”Warning: Breathalyzer in Use“; ”Convicting the ‘Average’ DUI Suspect“; “Why Breathalyzers Don’t Measure Alcohol“; “Driving Under the Influence of… Gasoline?; ”How to Fool the Breathalyzer“. (These and many other sources of error are explained more fully in Chapter 6 of my book, Drunk Driving Defense, 6th edition.)

One of the most common sources of error in breath alcohol analysis is simply testing the subject too early — while his or her body is still absorbing the alcohol.

Let’s take a common example. At a restaurant Sarah shares a bottle of wine with a friend. She nurses one glass over a one-hour dinner. Nearing the end, another glass is poured from the bottle and she finishes this. The two friends then order an after-dinner drink. Noting the time, Sarah quickly finishes the drink and leaves. She is stopped by the police one block from the restaurant. After questioning and field sobriety tests, she is taken to a police station and tested on a breathalyzer. The machine shows her blood alcohol concentration (BAC) to be .09% — over the legal limit. She is booked for DUI and jailed.

Sarah’s true BAC, however, was lower, perhaps much lower. If a blood sample had been taken instead of a breath test, the results would have shown only .05% — well under the legal limit.

Absorption of alcohol continues for anywhere from 45 minutes to two hours after drinking or even longer. Peak absorption normally occurs within an hour; this can range from as little as 15 minutes to as much as two-and-a-half hours. The presence of food in the stomach can delay this to as much as four hours, with two hours being common.

During this absorptive phase, the distribution of alcohol throughout the body is not uniform; uniformity of distribution — called equilibrium – will not occur until absoprtion is complete. In other words, some parts of the body will have a higher blood alcohol concentration (BAC) than others. One aspect of this non-uniformity is that the BAC in arterial blood will be higher than in veinous blood (laws generally require blood samples to be veinous). During peak absorption arterial BAC can be as much as 60 percent higher than veinous.

This becomes very relevant to breath alcohol analysis because the alveolar sacs in the lungs are bathed by arterial blood, not veinous: The diffusion of alcohol through the sacs and into the lung air will reflect the BAC of the body’s arterial blood. Therefore, the breath sample obtained by the machine will be reflective of pulmonary BAC — which, during absorption, will be considerably higher than veinous BAC (and higher than the BAC in other parts of the body).

After extensive research, one of the most noted experts in the field of blood alcohol analysis has concluded:

Breath testing is not a reliable means of estimating a subject’s blood alcohol concentration during absorption…..

There is a significant likelihood that a given subject will be in the absorptive state when tested under field conditons. Because of large differences in arterial BAC and veinous BAC during absorption, breath test results consistently overestimate the result that would be obtained from a blood test — by as much as 100% or more. In order to have some idea of the reliability of a given breath test result, it is essential to determine by some objective means whether the subject is in the absorptive or post-absorptive state. In the absence of such information, an appropriate value for the uncertainty associated with the absorptive state should be applied to all breath test results.

Simpson, “Accuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive State”, 33(6) Clinical Chemistry 753 (1987).

The most recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma, agrees with Simpson: “When a blood test is allowed, an administered breath test is discriminatory, because in law enforcement practice the status of absorption is always uncertain.”

So where is MADD going with their “War on Drunk Driving”?

El Camino Teens Face Heavy Emotions Brought

About by Drunken-Driving Dramatization

Oceanside, CA.  May 30 – It was an elaborate hoax, but 36 students at El Camino High pulled it off with potentially life-saving consequences.

The result was a soberingly realistic dramatization about the dangers of drinking and driving, delivered with surprising professionalism.

Many juniors and seniors were driven to tears – a few to near hysterics – May 26 when a uniformed police officer arrived in several classrooms to notify them that a fellow student had been killed in a drunken-driving accident.

The officer read a brief eulogy, placed a rose on the deceased student’s seat, then left the class members to process their thoughts and emotions for the next hour.

The program, titled “Every 15 Minutes,” was designed by Mothers Against Drunk Driving. Its title refers to the frequency in which a person somewhere in the country dies in an alcohol-related traffic accident.

About 10 a.m., students were called to the athletic stadium, where they learned that their classmates had not died…

Though the deception left some teens temporarily confused and angry, “If it makes even one student think twice before getting behind the wheel of a car while intoxicated, it is worth the price”, said California Highway Patrol Officer Eric Newbury, who orchestrates the program at local high schools.

“I want them to be an emotional wreck. I don’t want them to have to live through this for real.”

The laws of every state in this country include a right to sue for the tort of “intentional infliction of emotional distress”.  Are MADD and the California Highway Patrol immune?  Or is this another example of the “DUI Exception”?

(Thanks to John Kruzelock.) 

So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driver’s license and gave you a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about due process: Can they punish me before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) drunk driving who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a drunk driving case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (“administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced all 50 states into adopting APS suspensions — or else no highway funds

Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection!

Not too surprisingly, the DMV wins about 96% of these DUI hearings.

That’s called “due process” in a drunk driving case.